Basinger v. Standard Furniture Co., 7418

• Decision Date: 29 June 1950
• Docket Number: No. 7418,7418
• Parties: BASINGER, v. STANDARD FURNITURE CO. et al.
• Court: Utah Supreme Court

Page 117

220 P.2d 117

118 Utah 121

BASINGER, v. STANDARD FURNITURE CO. et al.

No. 7418.

Supreme Court of Utah.

June 29, 1950.

Dwight L. King, Salt Lake City, Wayne L. Black, Salt Lake City, for appellant.

Moreton, Christiansen & Christensen, Salt Lake City, Homer Holmgren, Salt Lake City, Robert Spooner, Salt Lake City, for respondents.

PRATT, Chief Justice.

This action was commenced by Ruth Marie Basinger, the appellant before this court, to recover for injuries sustained by her in a fall on a sidewalk in Salt Lake City. The trial court granted a nonsuit as to all parties defendant. This appeal is from the judgment of nonsuit granted in favor of defendants Zion's Co-operative Mercantile Institution and Standard Furniture Company.

At the time of her injury the appellant was walking west on the sidewalk on the south side of South Temple Street. She was accompanied by four of her children, the youngest of which she was carrying in her arms. She testified that they were walking slowly; that as they came to the east side of the driveway which crosses the side walk to the rear of Z.C.M.I. and Standard Furniture Company, and alongside the Lois Greenwood shop, they hesitated to ascertain that no automobiles were coming out of or going into the alley, and then continued across the driveway. As she reached the west side of the driveway, she struck her right foot against a raised portion of the sidewalk which formed a ledge across the sidewalk from north to south. As Mrs. Basinger fell forward she threw her daughter, whom she was carrying, ahead and to the side, so as to not fall on her, and as she fell she caught her weight on her knees, hands, arms and shoulders. On this appeal it is unnecessary to go into the nature and extent of her injuries.

The evidence given on behalf of the plaintiff indicates that the driveway across the sidewalk was not used by defendant Lois Greenwood, nor by defendant Zion's Savings Bank and Trust Company. Plaintiff moved for a dismissal as to Lois Greenwood which motion was granted, and a motion for nonsuit made by counsel for Zion's Savings Bank and Trust Company was sustained. There is no appeal from these rulings.

Standard Furniture Company uses the driveway to unload merchandise from their warehouse to their retail store. Their ordinary practice was to carry only sample stock in their retail store, however, and for the most part deliveries to customers were made direct from the warehouse to the customer, rather than from the retail store to the customer. They had two one and one half ton vans, and three smaller trucks. One of the ton and one half vans was used almost exclusively between the warehouse and the railroad. Other vehicles coming in and out used the driveway also when transacting business with Standard Furniture Company. The Z.C.M.I. Tea Room used the driveway to receive deliveries, and for garbage removal purposes. One witness fixed the number of trucks which would use the driveway as fifty such vehicles. We are not informed as to the ownership of the driveway, nor the terms of the use thereof, except that the respondents have used it many years, and claim the right to do so; nor are we informed as to whether other business houses besides the two respondents use the driveway.

Introduced in evidence as exhibits are three photographs of the sidewalk at the place where the fall occurred. From the photographs and the testimony, it appears that the driveway is constructed somewhat differently than the sidewalk to the west, and that there appears to be a ledge running north and south across the sidewalk where the driveway and the sidewalk west of it join. The sidewalk to the west appears to be somewhat higher than the driveway, although to the south, next to the building, the sidewalk and driveway appear to be substantially even and level. The point at which the appellant tripped appears to be the point at which the ledge is most pronounced. The sidewalk to the west appears to slant from the buildings toward the curb, whereas the driveway appears to dip somewhat. Evidence was introduced indicating that the off-set at the point where appellant tripped was about one and one-half inches.

Appellant's position is that there is substantial evidence that the respondents put the sidewalk to an unusual and extraordinary use which caused the defect from which appellant received her injuries.

Under the rules laid down by this court in the case of Ray v. Salt Lake City, 92 Utah 412, 69 P.2d 256, 119 A.L.R. 153, undoubtedly a jury question exists as to whether the defect in the sidewalk in the present instance would constitute a dangerous and unsafe condition. Before appellant is entitled to have the jury consider this question however, it is first necessary that some duty, obligation or negligence on the part of the respondents, or either of them, be established rendering them liable for the injuries sustained by appellant.

In seeking to establish such state of facts, appellant cites us to the case Salt Lake City v. Schubach, 108 Utah 266, 159 P.2d 149, 153, 160 A.L.R. 809, wherein it was said: 'The ultimate liability is upon the author or continuer of the nuisance. When the owner installs such passageways, vaults or coal holes, it is presumably done for the benefit of his property. 'Neither the public or other individuals can derive any possible advantage from such a use of the sidewalk, but it is solely for the defendant's benefit, and he must see to it that he does not endanger the safety of others, and that he incommodes the public as little...